Boston College Third World Law Journal

Volume 10 | Issue 2 Article 2

5-1-1990 Panel Discussion: Options for a Law-Abiding U.S. Policy in Central America

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Recommended Citation , Panel Discussion: Options for a Law-Abiding U.S. Policy in Central America, 10 B.C. Third World L.J. 215 (1990), http://lawdigitalcommons.bc.edu/twlj/vol10/iss2/2

This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Third World Law Journal by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. PANEL DISCUSSION: OPTIONS FOR A LAW­ ABIDING U.S. POLICY IN CENTRAL AMERICA

RECORDED AT THE INTERNATIONAL LAW ASSOCIATION INTERNATIONAL LAW WEEKEND, NOVEMBER 4, 1988*

EDITOR'S NOTE...... 215 I. INTRODUCTION: Thomas Farer, Moderator...... 218 II. MULTINATIONAL INVOLVEMENT IN THE CENTRAL AMERICAN PEACE PROCESS: Anne-Marie Burley...... 219 III. LEGAL PRINCIPLES, IDEOLOGY AND HUMAN RIGHTS IN CENTRAL AMERICA: Thomas Farer...... 222 IV. THE ROLE OF THE I.e.J. IN Nicaragua v. United States: Jonathan Charney...... 225 V. THE HISTORICAL SUPPORT FOR THE I.C.J. IN THE UNITED STATES: Mark Janis...... 228 VI. LIVING WITH LEFTIST REGIMES IN CENTRAL AMERICA: Jules Lobel. . . 230 VII. LEGAL OPTIONS FOR KEEPING THE PEACE IN CENTRAL AMERICA.. ... 233 A. Collective Security...... 233 B. Measuring Damages in Nicaragua v. United States...... 239 VIII. COMMENTS AND QUESTIONS FROM MEMBERS OF THE AUDIENCE...... 241 IX. CONCLUDING REMARKS...... 252 A. Changing the U.S. Conception of Its Hemispheric Role: Jules Lobel 252 B. Framing a Positive Response to the I.C]. Judgment: Mark Janis. . . . 253 C. Using the Tools of International Law: Jonathan Charney...... 254 D. Restructuring the Framework of International Law: Thomas Farer... 255 E. The U.S. Should Act MultilateralZv: Anne-Marie Burley...... 256 F. Conclusions of the Panel: Thomas Franck...... 256

EDITOR'S NOTEt

All members shall refrain in their international relations from the threat or use of force against the territorial or political independence of any state . . . .

U.N. CHARTER, art. 2, para. 4 .

• Printed with the permission of Condyne/The Oceana Group, Dobbs Ferry, N.V. The Editorial Board of the BOSTON COLLEGE THIRD WORLD LAW JOURNAL wishes to thank the panelists for their cooperation in our preparation of this transcript. t Edited by Kevin M. McGinty, Executive Editor, BOSTON COLLEGE THIRD WORLD LAW JOURNAL. 215 216 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215

The controlling norms of international law forbid military in­ tervention in the affairs of other nations. Judged by this standard of behavior, the history of United States involvement in Central America has been a history of lawlessness. Between 1854 and 1990, U.S. troops have invaded Panama seven times, Nicaragua six times, Honduras four times, and Guatemala and the Dominican Republic once each. l This pattern of U.S. military intervention underscores the U.S. government's habitual disrespect for Central American sovereignty. Remarkably, international law has never held the United States accountable for violation of other nations' sovereignty by its own troops. In 1984, however, Nicaragua forced the United States to answer at international law for its illegal covert activities in that country. It sued the United States in the International Court of Justice (I.C.].) for damages arising from U.S. covert attempts to overthrow the Sandinista regime.2 In its complaint, Nicaragua alleged that it had suffered over $370 million in damages stemming from the activities of the U.S.-backed Contra rebels and from the Central Intelligence Agency (CIA) mining of Nicaragua's harbors.3 Nicaragua asserted that these U.S. activities violated the principle of non-intervention in the affairs of sovereign states,4 making the United States liable at international law for the damages it had caused to Nicaragua.5 The United States argued in response to the complaint that the I.C.]. had no jurisdiction over the suit.6 When the I.C.]. rejected the U.S. position, the United States withdrew from participation in the suit. 7 After hearing Nicaragua's argument on the merits of the case, the I.C.]. found against the United States on each count of the complaint.8 Although the I.C.]. held that the United States has

I See Lopez, North American Interventionism in CONFLICT IN NICARAGUA 53, 65-66 (]. Valenta & E. Duran ed. 1987); THE CONTINUING CRISIS: U.S. POLICY IN CENTRAL AMERICA AND THE CARIBBEAN 4-5 (M. Falcoff & R. Royal ed. 1987); D. MCCULLOUGH, THE PATH BETWEEN THE SEAS 361-86 (1977). This tabulation includes the December 20, 1989 U.S. invasion of Panama. See N.Y. Times, Dec. 20, 1989, at AI, col. 1. 2 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1984 I.C.]. 392 (Judgment of Nov. 26) [hereinafter Nicar. v. U.S. (Jurisdiction)]; 1986 I.C.]. 14 (Judgment of June 17) [hereinafter Nicar. v. U.S. (Merits)]. 3Id. at 20; see infra note 84 and accompanying text. 4 See, e.g., U.N. CHARTER, art. 2, para. 4. 5 Nicar. v. U.S. (Merits), 1986 I.C.]. at 19-20. 6 See Nicar v. U.S. (Jurisdiction), 1984 I.C.]. at 396-97. 7 See U.S. Dep't of State, Statement on the U.S. Withdrawal from the Proceedings Initiated by Nicaragua in the International Court of Justice (Jan. 18, 1985), reprinted in 24 INT'L LEGAL MATERIALS 246 (1985). 8 Nicar. v. U.S. (Merits), 1986 I.C.]. at 134-35. 1990] U.S. POLICY IN CENTRAL AMERICA 217 violated international law, the case has not proceeded to the dam­ ages phase. While the I.C.]. verdict in Nicaragua v. United States9 demon­ strated the lawlessness of U.S. Central American activities, the rec­ ognition of that lawlessness provides the United States with an opportunity to restructure its policy toward that region. In order to avoid an I.C.]. award of money damages to Nicaragua, the United States could instead frame a Central American policy premised on peaceful respect for the sovereignty of each state in the region. During the Winter of 1989-1990, the continued U.S. support for the besieged ruling regime in EI Salvador and the U.S. invasion of Panama have made the likelihood of such a Central American policy seem remote. On the other hand, the peaceful conclusion of the elections in Nicaragua and the election of the Chamorro govern­ ment make it possible that the United States might wish to adopt a Central American policy which respects the principles of interna­ tional law at all times, and not merely when it suits the United States. On November 4, 1988, a panel of distinguished scholars of international law met to discuss the possibility that the United States would take the opportunity presented by the Nicaragua case to renew its status as a proponent and exemplar of the principles of international law. In order of appearance, the panelists were: Professor Thomas Franck: Director of the Center for Interna­ tional Studies, New York University;!O Professor Anne-Marie Burley: Professor of Law, University of Chicago Law School;!! Professor Thomas Farer: Professor and Director of the Joint De­ gree Program in Law and International Relations, American Uni­ versity; !2 Professor Jonathan Charney: Professor of Law, Vanderbilt Law School;!3

91984 I.C.]. 392 (judgment of Nov. 26) (jurisdiction); 1986 I.C.]. 14 (judgment of June 17) (Merits). 10 B.A., 1952; LL.M., 1953, British Columbia; LL.M, 1954; S.J.D., 1959, Harvard. Pro­ fessor Franck is the author of numerous books on international law and has been Editor-in­ Chief of the American Journal of International Law since 1984. II A.B., 1980, Princeton; M.Phil., 1982, Oxford; J.D., 1985, Harvard. At the time of the panel discussion, Professor Burley was a Harvard MacArthur Fellow in International Security. 12 B.A., Princeton; LL.B., Harvard. Professor Farer is the former president of the Uni­ versity of New Mexico, past president of the Inter-American Commission on Human Rights, and a member of the Board of Editors of the American Journal of International Law. 13 B.A., 1965, New York University; J.D., 1968, University of Wisconsin. Professor Char- 218 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215

Professor Mark Janis: Professor of Law, University of Connecti­ cut Law School; 14 Professor Jules Lobel: Professor of Law, University of Pittsburgh Law School. 15 The purpose of the discussion was to assess the implications of the decision in Nicaragua v. United States and to determine what courses of action were available to the United States in order that it might once again become a law-abiding nation in the international arena. Among the issues presented were 1) whether the U.S. should participate in the damages phase of the case; 2) what viable political alternatives to participation in the damages phase exist; and 3) what legal and political ramifications would follow from U.S. failure to participate in any damages proceedings. After the panelists pre­ sented their views on these issues, the floor was opened to questions and comments from the audience. What follows is a transcript of the panel discussion.

1. INTRODUCTION Thomas Franck, Moderator: Good afternoon. Our panel is going to discuss options for a law-abiding U.S. policy in Central America. Central to that theme is the notion that the United States is at a fork in the road in its Central American policy. Current develop­ ments presage important political and legal changes. An editorial printed in today's New York Times makes precisely that point. 16 The editorial supports a viewpoint which I think will be made by our speakers today. There are new opportunities in international law which the U.S. government has not taken the full opportunity to explore. These possibilities have been created in two senses which are relevant to the lawyer. We know, of course, that there are significant new political developments in the Soviet Union, China and elsewhere. Recent proposals have advocated bilateral discus­ sions between U.S. legal advisor Abe Sofaer and Soviet Union legal advisor and Deputy Foreign Minister Igor Petrovsky aimed at an ney has been a consultant to the U.S. Department of State and is on the Board of Editors of the American Journal of International Law. 14 A.B., 1969, Princeton; B.A. (jurisp.), 1972, Oxford; J.D., 1977, Harvard. Professor Janis is the author of several books and many articles on international law including An Introduction to International Law (1988). 15 B.A., 1972, New York University; J.D .• 1978. Rutgers, Newark. Professor Lobel is a teacher of international and constitutional law. 16In Sight: A Real World Court. N.Y. Times, Nov. 4, 1988, at A34, col. 1 [hereinafter A Real World Court]. 1990] u.s. POLICY IN CENTRAL AMERICA 219

agreement by the U.S. and the Soviet Union to submit to the juris­ diction of the International Court in disputes arising out of multi­ lateral instruments to which both countries are partiesY In addition, there are a number of other promising initiatives in the international law field. The Soviet Union has accepted the notion of career service and competitive recruitment to positions in the United Nations. ls This implication would be revolutionary in­ deed, not solely because the Soviet Union has opposed that method of recruitment in the past, but also because there are many bureau­ cratic factors in the U.N. militating against merit appointments and merit promotions. 19 This change in the Soviet position is just one of several new developments of various kinds in the international organization field. We do not have here a representative or cross-sectional panel. Instead, the panel shares a set of assumptions which may not be widely shared by the International Law Association, the interna­ tional bar, or members of the academic and practicing communities. They share the assumption that all is not well with American policy toward Central America and that the United States is not currently a law-abiding citizen of the international community with respect to its Latin American policies. This raises two questions. First, if the U.S. is not law abiding, so what? Second, given our lawless position, where do we go from here? I have posed these and other questions in a letter I sent about a month ago to the members of the panel. The panelists will address these issues initially in brief statements and then respond to each other. Afterward, I have asked them to think collectively with you in the audience about what some of the possibilities might be for U.S. policy in Central America. I will not intervene again until all five of the panelists have had a brief say, unless the brief say becomes too long. With that, I will ask Anne­ Marie Burley to start.

II. MULTINATIONAL INVOLVEMENT IN THE CENTRAL AMERICAN PEACE PROCESS Anne-Marie Burley: Thank you. Before we can think about options for a law-abiding policy in Central America, we really have to ask

17 See N.Y. Times, Oct. 6, 1988, at AI, col. 1 (Reagan administration proposes World Court arbitration of U.S.-Soviet disputes); id., Nov. 3, 1988, at All, col. 1 (Soviet Union indicates willingness to allow World Court adjudication of U.S.-Soviet disputes). 18 See N. Y. Times, June 4, 1988, at AI, col. 2 (Soviet Union supports career appointment of U.N. employees). 19Id. 220 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. lO:215 what political objectives we want to achieve. Then, perhaps, we can try to figure out law-abiding means of achieving those goals. Three issues come to mind that will shape our objectives. First is the internal situation in Nicaragua, particularly with regard to civil and politicalliberties.20 Second is whether Nicaragua is a security prob­ lem or a threat to the other states in the region. These two issues are all too often confused in the domestic debate, yet are quite distinct. Third is the case brought by Nicaragua in the World Court.21 What we do about that case will certainly have an impact on our relations with Nicaragua. More importantly, it raises larger questions about our attitude toward the Court and toward inter­ national law in general. I would like to focus on each one of these issues for a few minutes. First of all, with respect to the internal political situation in Nicaragua, the U.S. wants to bring about change, either by pres­ suring the government through destabilizing activity or by forcing a change in the political system.22 The applicable principles of in­ ternationallaw, however, prohibit intervention in the internal affairs of a foreign nation,23 leaving no legal options for unilateral action. So I think that question answers itself, at least for the moment. We can certainly either choose not to do business with Nicaragua, or conversely, grant aid conditioned on political change.24 But in terms

20 A 1981 investigation of Nicaragua found greater respect for human rights under the Sandinistas than had existed under the Somoza regime. See generally INTER-AMERICAN COM­ MISSION ON HUMAN RIGHTS, REPORT ON THE SITUATION OF HUMAN RIGHTS IN THE REPUBLIC OF NICARAGUA (1981) [hereinafter REPORT ON HUMAN RIGHTS IN NICARAGUA]' By 1986, however, actions taken by both the Contras and the Sandinistas seriously threatened human rights in Nicaragua. AMERICAS WATCH COMMITTEE, HUMAN RIGHTS IN NICARAGUA 1985- 1986, 1-13 (1986); see also Farer, Looking at Looking at Nicaragua: The Problematique of Impar­ tiality in Human Rights Inquiries, 10 HUM. RTS. Q. 141 (1988). In part, the Reagan Adminis­ tration justified its intervention in Nicaragua as an answer to human rights violations com­ mitted by the Sandinistas against the Miskito Indians, including the 1982 relocation of 8,500 Miskitos out of areas in which the Sandinistas and the Contras were fighting. See H. SKLAR, WASHINGTON'S WAR ON NICARAGUA 103-04 (1988). 21 Nicar. v. U.S. (Merits), 1986 I.C.]. 14. 22 See Note, Lawless Interoention: United States Foreign Policy in El Salvador and Nicaragua, 7 B.C. THIRD WORLD L.J. 223, 241 (1987) [hereinafter Lawless Interoention] (the aim of U.S. support of the Contras was to "force the Nicaraguan government to 'say Uncle.'" (quoting R. Reagan, President's News Conference of Feb. 21, 1985, 21 WEEKLY COMPo PRES. Doc. 213 (Feb. 21,1985))). 23 See U.N. CHARTER, art. 2, para. 4 ("All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political indepen­ dence of any state ...."). 24 See infra note 34 and accompanying text (discussing non-military influence over inter­ nal affairs of other states). 1990] U.S. POLICY IN CENTRAL AMERICA 221 of active unilateral policy designed to achieve another objective, there is no legal option. The next issue is the security problem. There are two prongs to this issue. First, to what extent is Nicaragua exporting revolu­ tion?25 Second, how do we stop it? There again, once you break it down, the answer is not very complicated. There have been a num­ ber of proposals for multilateral forces, either under UN or OAS auspices, to monitor the borders and reduce the security threat.26 Most recently Honduras has called for such a force, not to check on arms shipments to the Sandinistas, but to monitor the Contras.2' An effective monitoring system would address both aspects of the security problem, as the Arias Plan has recognized.28 A better model is actually the Conference on Security and Cooperation in Europe (CSCE).29 The Conference has recognized a connection between domestic affairs and external security such that internal instability affects not only the security of the country in which it arises but also the stability of that country's neighbors. gO It is also an ongoing process in which countries have a legitimate right to intervene in some measure or at least to be concerned with domestic political systems of their neighbors for security reasons. It seems to me the CSCE may be a model for addressing both problems I raise by essentially institutionalizing something like the Arias Plan, provid­ ing not a response to a crisis, but an ongoing regional process. The third issue, as I said, is the Nicaragua case. What has most damaged the United States is not that the Court has held us in

2. The Court found some evidence of Nicaragua "exporting revolution." See Nicar. v. U.S. (Merits), 1986 I.C.J. at 82 ("support for the armed opposition in El Salvador from Nicaraguan territory was a fact up to the early months of 1981 ...."); see also id. at 87 ("certain transborder military incursions into Honduras and Costa Rica are imputable to the Government of Nicaragua."). 26 For example, in August of 1987, the leaders of Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua met under the direction of Costa Rican President Oscar Arias and proposed an international commission to oversee termination of military and guerilla activities in Central America. See Agreements by the Presidents of Central America (the Guatemala Peace Plan), Aug. 7, 1987, at § 10, reprinted in Comment, The Political Influences on Effective Treatymaking in America's Backyard: The Guatemala Peace Plan-A Case Study, 7 DICK. J. INT'L L. 95, 126 (1988). 27 See N.Y. Times, Oct. 5, 1988, at AS, col. 1 (Honduras calls for U.N. peacekeeping force to monitor influx of Contras and Salvadoran rebels into the country). 28 See supra note 26. 29 See Conference on Security and Cooperation in Europe, Final Act, Aug. 1, 1975, reprinted in 14 INT'L LEGAL MATERIALS 1292 [hereinafter Helsinki Final Act]. so See id. at ch. 1, art. VII (stating that "[t]he participating states recognize the universal significance of human rights and fundamental freedoms, respect for which is an essential factor for the peace, justice and well-being necessary to ensure the development of friendly relations and co-operation among themselves as among all states."). 222 BOSTON COLLEGE THIRD WORW LAW JOURNAL [Vol. 10:215

violation of international law. While that is serious, even more se­ rious is the United States' hypocritical reaction to the case, flouting a respected international body in a process we have supported for decades.31 We ought, instead, to do something that will strengthen the Court. The most obvious option is to rejoin the proceedings and accept the compulsory jurisdiction of the Court. But on a deeper level, I think we need to do something that will allow the present judgment to have some effect. One of the worst things that could happen for the Court is to have another Corfu Channel-type case32 in which the Court assesses damages against the U.S. that are never paid,33 thus providing one more example to be cited by people who want to say that international law makes no difference. This result can be avoided. The damages phase of the Nicaragua case has not yet occurred. There is a window of opportunity to enter into settlement negotiations with Nicaragua. Such an action would, in some way, take account of the judgment as part of a political settlement, which could implicitly allow the Court to have some impact on the evolution of political events. I think this would do a great deal for the Court and would honor our obligations at inter­ national law.

III. LEGAL PRINCIPLES, IDEOLOGY AND HUMAN RIGHTS IN CENTRAL AMERICA Thomas Farer: In deciding what we should do in Central America we need first to consider what criteria ought to be employed. It would seem to me that there are three perspectives that most people use, consciously or unconsciously, in thinking about what American policy should be. One is legal. The whole question of what inter­ national law tolerates, allows or encourages in connection with for­ eign involvement in essentially domestic disputes was rehearsed to the point of repletion during the Vietnamese conflict. Over the past

31 See generally D. F. FLEMING, THE UNITED STATES AND THE WORLD COURT (1968) (noting the leading role of the U.S. in establishing the Permanent International Court of Justice and the International Court of Justice and U.S. support for the international rule of law). 32 The Corfu Channel Case (U.K. v. Alb.), 1949I.C.J. 4 (Judgment of Apr. 9) [hereinafter The Corfu Channel Case] (suit by the United Kingdom against Albania for the cost of two naval vessels destroyed by mines laid in the Corfu Channel). 33 ld. at 249 (damages awarded to the United Kingdom by the Court); see C. GRAY, JUDICIAL REMEDIES IN INTERNATIONAL LAW 82-87 (1987) (noting that an award of money damages is unusual in international law). 1990] U.S. POLICY IN CENTRAL AMERICA 223 eight years, it has been rehearsed once again,34 to the point that I begin to weep for the trees that have been cut down to produce the paper on which these observations continue to be recorded. My recommendation is to avoid discussing that issue and to found a society on behalf of the trees comparable to the Save the Whales societies. Moving to strategic issues, the principle concern has been that the virus of revolution will be exported to other Central American states from a consolidated Marxist regime in Managua.35 Those of you who have a northern New England provenance like myself may recall that, for a century prior to 1936, there was a saying in the country that "as Maine goes, so goes the nation." It was supposed to be the bellwether electoral state. In the 1936 election where F.D.R. captured forty-six of forty-eight states, the saying was changed to "as Maine goes, so goes Vermont." I feel the same way about Nicaragua. Though it seems to me unlikely, I am willing to concede the possibility that the consolidation of the Sandinista regime might have some influence on what happens in EI Salvador. But I am unconvinced, as I have always been unconvinced, that what happens to EI Salvador matters a great deal to the world strategic balance. Next there is the ideological perspective or the human rights perspective, as some might call it. For the Reagan administration, and for many people unassociated with it, it has been the question of democracy. There is, in fact, one democratic state in Central America. Although this is not widely known, it is the long lost twin of Uruguay, kidnapped 200 years ago from its home in the southern cone of South America and dumped into the middle of the Central American isthmus. I refer, of course, to Costa Rica. There is no other democratic state in Central America. For over two millennia, there has been considerable debate as to what democracy means; how it is properly defined. As Samuel Huntington pointed out in a paper delivered a couple years ago,

34 See, e.g., Damrosch, Politics Across Borders: Nonintervention and Nonforcible Influence Over Domestic Affairs, 83 AM. J. INT'L L. 1 (1989) [hereinafter Damrosch, Politics]; see also T. NARDIN, LAw, MORTALITY, AND THE RELATIONS OF STATES (1983); INTERVENTION IN WORLD POLITICS (H. Bull ed. 1984); F. TESON, HUMANITARIAN INTERVENTION: AN INQUIRY INTO LAW AND MORALITY (1988); Reisman, Coercion and Self-Determination: Construing Charter Article 2(4),78 AM. J. INT'L L. 642 (1984) (cited in Damrosch, Politics at 27 n.42). 35 See supra note 25; see also J. KIRKPATRICK, DICTATORSHIPS AND DOUBLE STANDARDS 53- 90 (1982) (asserting that Central American states are vulnerable to Marxist revolution ex­ ported from neighboring states). 224 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215

Schumpeter has won.36 There is today almost universal agreement that democracy is a political arrangement under which the power to decide, as Schumpeter puts it, is allocated on the basis of electoral contestation.37 If one accepts that definition of democracy, Guate­ mala, EI Salvador, Honduras and Nicaragua are not democracies. Guatemala, EI Salvador and Honduras have elections, but the power to decide the most important political, military and social questions remains in the barracks of the armed forces. 38 Arguably, the cases of Honduras and EI Salvador are more complicated. Power in those two countries arguably is divided between the barracks of the armed forces and the American Embassy.39 In Nicaragua, the 1984 election consolidated the power achieved previous to the election by other means. The traditions and the existing social and political structures in Nicaragua make it, I think, inevitable that, for the time being, decisive power in that society will be in the hands of one small group or another. The only question is: which small group? I do not believe authentic full scale democracy can be achieved at the present time because there are no powerful neutral institutions within the society that can guar­ antee the indefinite continuance of fair electoral contestation. All social actors face the grave danger of one person, one vote, once. What I think can be negotiated, and indeed was virtually ne­ gotiated within the last two years, is space in which institutions ultimately capable of supporting a democratic system could evolve. A Sandinista-dominated political order enjoying normal relations with the United States is more likely to evolve toward political pluralism and a relatively humane society than one dominated by General Bermudez, former colonel of the National Guard.40 You may feel that my own political biases, not known but at least sus­ pected by many of you, make me an incredible evaluator of General Bermudez. But, if you wish to read the 1979 report of the Inter-

36 See Huntington, Will Countries Become More Democratic?, 99 POL. SCI. Q. 193 (1985). 37Id. 38 See, e.g., 2 M. MCCLINTOCK, THE AMERICAN CONNECTION 215-234 (1985) (military in Guatemala has absolute control of the government). 39 See AMERICAS WATCH COMMITTEE, THE CIVILIAN TOLL 1986-1987, 295 (1987) (the U.S. provided $268 million to EI Salvador in 1986); Note, Lawless Intervention, supra note 22, at 227 (U.S. aid to EI Salvador between 1981 and 1986 exceeded $2 billion). 40 Col. Enrique Bermudez was Nicaragua's military attache assigned to Washington at the time the Somoza government fell and had been the commander of Somoza's National Guard. He was instrumental in forming the first Contra units out of former National Guard units and became de facto commander of the Contras. See H. SKLAR, supra note 20, at 77. 1990] U.S. POLICY IN CENTRAL AMERICA 225

American Human Rights Commission,41 a Commission consisting largely of extremely conservative men and women, you will find it extraordinarily difficult to believe a that a former National Guard colonel would reign over a democratic system in Nicaragua. I do not suggest that the Sandinistas have a democratic voca­ tion. The principle reason I think that the Sandinistas are more likely to be the patrons of a process which could culminate over a period of time in recognizable, democratic institutions is that they are subject to important constraints by virtue of living within our sphere of influence. I fear on the basis of our experience with Central America that a regime of the right would not feel such constraints.42 I will be happy to elaborate on any of these points later on, but I want to yield the floor now.

IV. THE ROLE OF THE I.C.]. IN Nicaragua v. United States jonathan Charney: My presentation will focus primarily on the Nic­ aragua case and the role of the International Court of Justice (I.C.].). Much of what I have to say has already been mentioned, but let me put it in my own words. The United States traditionally has been committed to the rule of public international law43 for very good reasons. The rule of international law overwhelmingly serves the interests of the United States.44 International adjudication promotes effective international law, specifically in the cases that are brought to the Court. More generally, it promotes adherence to the rule of law since states appreciate that their actions may be subject to litigation before the Court. Until recently, the U.S. had accepted the compulsory jurisdiction of the I.C.J. It still remains a party to many international agreements which contain com prom­ issory clauses by which the United States has consented to be sued in the Court if disputes arise with regard to the application or interpretation of these agreements.45 The U.S. commitment to the

41 REPORT ON HUMAN RIGHTS IN NICARAGUA, supra note 20. 42 See AMERICAS WATCH, supra note 39, at 295 (describing u.s. support for the ruling regime in El Salvador and U.S. acquiescence in human rights violations). 43 See L. Henkin, How Nations Behave 53, 62-63 (1970). See also Franck and Lehrman, Messianism and Chauvinism in America's Commitment to Peace Through Law, in THE INTERNA­ TIONAL COURT OF JUSTICE AT A CROSSROADS (L. Damrosch ed. 1987) at 3. 44 See generally Henkin, supra note 43. 45 See, e.g., Treaty of Friendship, Commerce and Navigation, Jan. 21, 1956, United States - Nicaragua, art. 24, para. 2, 9 U.S.T. 449, 467, T.I.A.S. No. 4024 (com promissory clause made the U.S. subject to World Court jurisdiction). See Charney, Compromissory Clauses and the jurisdiction of the International Court of justice, 81 AM J. INT'L, L. 855 (1987); Morrison, 226 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215

I.C.]. traditionally has been strong, despite the likelihood that not every case to which it may be a party will be decided in its favor. In the Nicaragua case, the Court found that it had jurisdiction based on both a compromissory clause and compulsory jurisdic­ tion.46 I believe that as a result the United States is legally bound to abide by the judgment on the merits in the case. It is also effectively bound by that judgment. International pressure has been put on the United States to abide by itY There has also been domestic pressure to abide by the judgment particularly from the U.S. Con­ gress.48 In that context, let us turn to the damages phase of the case, which is about to be reached. I believe that if the Court were to adjudge the United States liable for damages, its liability would have serious diplomatic and political ramifications for the United States. A substantial judgment against the U.S. will increase the damage suffered by the United States. It is in the U.S. interest to promote the rule of international law. If an unpaid judgment were to hang over the United States, its international prestige and its ability to promote behavior consistent with international law would be further damaged. What should the United States do about this? As a party to the action, the United States is not legally obligated to participate in the litigation.49 It chose not to do so at the merits phase, although it did participate at the jurisdiction phase.50 Even so, the U.S. is en­ titled to participate at the damages phase. It certainly could come in and present its position at that time. If one were to examine the results of the merits phase, it would become apparent that the

Treaties as a Source ofjurisdiction, Especially in U.S. Practices, in THE INTERNATIONAL COURT OF JUSTICE AT A CROSSROADS (L. Damrosch ed. 1987) at 58; Sohn, Settlement of Disputes Relating to the Interpretation and Application of Treaties, 150 RECUEIL DES COURS 195 (1976); Senate Comm. on Foreign Relations, International Convention on the Prevention and Punishment of the Crime of Genocide, S. Exec. Rep. No. 50, 98th Cong., 2d Sess., 37-81 (1984). 46 Nicar. v. U.S. (Merits), 1986 I.C.]. at 17 (citing STATUTE OF THE I.C.]., art. 36 (1945) (stating which cases are under the compulsory jurisdiction of the World Court)); see also Treaty of Friendship, supra note 45; see Charney, Compromissory Clauses, supra note 45. 47 See N.Y. Times, Aug. I, 1986, at A3, col. I (eleven countries in the U.N. Security Council voted to compel U.S. compliance with the I.C.]. ruling; the U.S. vetoed the resolution. 48 See, e.g., N.Y. Times, july I, 1986, at A22, col I (editorial calling for U.S. compliance with I.C.]. ruling in the Nicaragua case). 49 See Charney, Disputes Implicating the Institutional Credibility of the Court: Problems of Non­ Appearance, Non-Participation, and Non-Performance, in THE INTERNATIONAL COURT OF JUSTICE AT CROSSROADS (L. Damrosch ed. 1987) at 288, 290. 50 Nicar. v. U.S. (Merits), 1986 I.C.]. at 17. See Charney, Disputes Implicating the Institutional Credibility of the Court, supra note 49. 1990] U.S. POLICY IN CENTRAL AMERICA 227

United States' failure to participate worked against its interests. For example, the Court was not presented with all the factual and legal arguments that it might have considered.51 Had the United States been before the Court as an actual participant this might not have happened. At the damages phase, there are opportunities for the U.S. to defend successfully its own interests, if it chooses to partic­ ipate. I do not want, however, to exaggerate these opportunities. I believe that it is open to the U.S. to argue for either mitigation of damages or a reversal on some of the matters that were addressed at the merits phase. For example, the Court did not have adequate information on the alleged illegal activities of Nicaragua. If pre­ sented with such evidence, the Court might either directly or indi­ rectly reverse its position. The South-West Africa cases stand as a good example of this possibility. 52 There is a prudential reason for the United States to present its case. If the United States were to appear before the Court and thereby exhibit a willingness to par­ ticipate, the Court may be more inclined to take into account U.S. interests and arguments not previously addressed. With respect to settlement, the U.S. and Nicaragua could settle the case at any time, on any terms, even after damages have been awarded. For example, in the Iran/U.S. Hostages case53 the Court decided that the U.S. was entitled to an award of damages. 54 Dam­ ages were not assessed, however, because the Hostages Acc1rd ren­ dered the case moot without a confession of error by either side, and without the payment of damages.55 In the instant case, it is possible that the U.S. and Nicaragua could resolve this difficult situation through bilateral, multilateral or even global negotiations.

51 See Nicar. v. U.S. (Merits), 1986 I.C.]. at 22-26 (discussing the disadvantage faced by the U.S. as a result of its failure to appear in the case). See Highet, Evidence, the Court and the Nicaragua Case, 81 AM. ]. INT'L L. 1 (1987); Charney, Disputes Implicating the Institutional Credibility of the Court, supra note 49, at 290-91; Charney, Customary International Law in the Nicaragua Case judgment on the Merits, 1 HAGUE Y.B. INT'L L. 16,25 (1988). 52 Compare South West Africa Cases (Eth. v. S. Afr. and Lib. v. S. Afr.), 1962 I.C.]. 319, 343 (Judgment of Dec. 21) (non-parties to League of Nations mandate for South West Africa have standing to sue in the World Court for violations of the mandate) with South West Africa Cases (Eth. v. S. Afr. and Lib. v. S. Afr.), 1966 I.C.]. 4, 37-38, 47 (Judgment of July 18) (such non-parties to the mandate do not have a cause of action under international law). See Charney, Compromissory Clauses and the jurisdiction of the International Court of justice, supra note 45, at 876-77. 53 U.S. Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.]. 3 (Judgment of May 24) [hereinafter U.S. v. Iran]. 5

This would prevent the United States from placing itself in a posi­ tion whereby it violates a judgment on the merits. It would also preclude the issuance of a specific damages award in favor of Nic­ aragua.

v. THE HISTORICAL SUPPORT FOR THE I.C.j. IN THE UNITED STATES Mark Janis: In his letter to us, Professor Franck posed a set of questions which he summarized as "so what" and "then what." For my contribution to "so what" let me say a little about how the Nicaragua case fits into the history of the I.C.]. For my "then what" let me talk about a way to solve the problem of U.S. compliance with the I.C.j. decision. Turning first to "so what" and the history of the Court, let me commend to you the book Lori Damrosch has edited, The Interna­ tional Court of Justice at a Crossroads. 56 Many of you here were con­ tributors. One lesson from the book is that we Americans tend to generalize our own experiences about the Court into assumptions of universal experiences. 57 We may be a bit presumptuous about this. Another lesson is that although the number of Court cases is few, 58 at least annually, the commentary about them is legion. This is, I think, because of the symbolism of the Court. The debate about the I.C.]. is an important reflection of larger ideas about the role of the United States in world politics and indeed about preferences about world order. With respect to our own American perceptions of international law, at least as early as the War of 1812, when New England suffered so much by the War, there has been enthusiasm here for an inter­ national court, the idea being to replace wars with adjudications of international disputes. Soon after that war concluded in 1815, David Low Dodge and Noah Worcester founded the first two peace soci­ eties in America in New York and Massachusetts. Both were dedi­ cated to the twin goals of promotion of international law and the establishment of some form of international court. As Professor Franck has written, America has exhibited two personalities regarding international law since the founding of these

56 THE INTERNATIONAL COURT OF JUSTICE AT A CROSSROADS (L. Damrosch ed. 1987). 57 See iti. at xxi. 58 In the 40 years spanning 1947-1986 the World Court heard a total of 73 cases, of which 55 were active disputes (or "contentious cases") and 18 were advisory opinions. See I.C.J.Y.B. 3 (1985-1986). 1990] u.s. POLICY IN CENTRAL AMERICA 229 early international law societies. 59 America has been very idealistic about international law, but also has a tradition of repudiating international law. 60 In any case it is true that the promotion of international law and international courts is one part of the Amer­ ican tradition, and that this tradition originated in those early peace societies. When I read this morning's New York Times editorial supporting the World Court,61 it was important, not so much be­ cause the Nicaragua case itself is all that important or the Court itself is even that important, but because the editorial symbolized a long-standing American ideal about the potential role of interna­ tional law. What we talk about today is not only the Nicaragua case but the role of the International Court and even more generally about the role of international law and adjudication in world poli­ tics. This is a very old debate in these parts. Let me now briefly address the question of what we should do now, the "then what" question. As I contemplated this meeting, I searched for a solution that is good for both international law and for the U.S. I therefore would like to put before you a modest proposal which I am totally unable to defend but would be glad to discuss later. It struck me that one precedent of international law we might think of following is the precedent of setting up an inter­ national arbitral tribunal to decide how to implement the judgment on the merits in the Nicaragua case.62 I envision a panel composed of perhaps three arbitrators, one appointed by the U.S., another appointed by Nicaragua and a third appointed independently. The U.S. and Nicaragua would then sign a treaty entrusting the imple­ mentation of the I.C.]. judgment to the panel. While this panel would obviously directly affect the Nicaragua case, its advantages would be even greater. This plan would show that America does not repudiate the decision of the Court. We would then recognize that the Court's decision has some validity, although many Ameri­ cans differ with the substance of its findings. Furthermore, submis­ sion of the dispute to arbitration takes the damages phase out of the World Court. At this point in the case, the Court has become

59 See Franck & Lehrman, Messianism and Chauvinism in America's Commitment to Peace Through Law, in THE INTERNATIONAL COURT OF JUSTICE AT A CROSSROADS, supra note 56, at 3-18. 6°Id. 61 See supra note 16. 62 See c. GRAY, supra note 33, at 5-58 (discussing international arbitral practice and procedure); see also notes 155 and 156 infra (discussing the history of international arbitra­ tion). 230 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215 so politicized, both by the United States and by others, that it is very difficult for the Court to act impartially.63 I think it might be easier for an arbitral panel to successfully reconcile the differences between the United States and Nicaragua over the substance of this dispute. It might also be one more small step towards effective international law and binding adjudication of international disputes.

VI. LIVING WITH LEFTIST REGIMES IN CENTRAL AMERICA Jules Lobel: In order to determine what options exist for a law­ abiding U.S. policy in Central America, it is necessary to ask a basic question. Is the United States government willing to permit the maintenance of a leftist Marxist government in Nicaragua that does not militarily export its revolution or its ideology, but does give political, economic, cultural and ideological support to leftist groups in other countries? Looking at post-war United States history, nei­ ther major party nor any administration, with the possible exception of the post-Watergate, post-Vietnam years of the Carter adminis­ tration, has been willing to answer that question affirmatively.64 Since World War II, we have seen continuous and repeated efforts by both Democratic and Republican administrations to overthrow leftist Marxist governments.65 These efforts have focused on both democratically elected governments in Guatemala and Chile and on revolutionary governments in Nicaragua and Cuba. Past debate over options for a law-abiding policy, thus constrained, centered around tactics for removal of this perceived unwanted cancer from our hemisphere. Some, like the Reagan administration, have urged military intervention, directly deploying U.S. forces, as in Gran­ ada,66 or by provision of military aid to surrogate anti-leftist forces.67 Those opposed to military intervention advocate a variety of polit­ ical and economic pressures designed to topple leftist governments,

63 But see Weiss, Judicio,l Independence and Impartio,lity: A Preliminary Inquiry, in THE INTER­ NATIONAL COURT OF JUSTICE AT A CROSSROADS, supra note 56, at 128-33 (suggesting that judges on the I.C.]. do not tend to vote in a predetermined fashion). 64 See generally.J. KIRKPATRICK, supra note 35, at 53-90 (describing relation of Central America to the security of the U.S.). 65 See, e.g., L. D. BENDER, THE POLITICS OF HOSTILITY 20-31 (1975) (describing the Eisenhower-Kennedy intervention in Cuba at the Bay of Pigs); see generally.J. PETRAS & M. MORLEY, THE UNITED STATES AND CHILE (1975) (analysis of the Nixon Administration's covert operation against Allende in Chile). 66 See generally Joyner, The United States Action in Grenada: Reflections on the Lawfulness of Invasion, 78 AM . .J. INT'L L. 172 (1984); 67 See Note, Lawless Intervention, supra note 22, at 240-42 (U.S. establishment and support of the Contras in order to destabilize the government). 1990] U.S. POLlCY IN CENTRAL AMERICA 231 such as trade embargoes,68 forbidding loans to leftist governments69 and covertly or overtly aiding opposition forces within the govern­ ment, either prior to or during the elections. 70 Unfortunately, both sides of the debate are interventionist. While there certainly exists a wide gulf between the two options and certainly both have seri­ ously different consequences, both fail to respect the basic principles of sovereignty contained in internationallaw.71 Consequently, both approaches fundamentally violate the spirit of a truly law-abiding U.S. policy towards the region. It therefore seems to me that the question is one of political will. Are we willing to live with Marxist governments like the San­ dinista government and recognize that revolution in many of these countries is virtually inevitable? In countries such as EI Salvador and Guatemala, the United States has opposed revolutionary move­ ments for the last fifty years. Thus far, we have forestalled revolu­ tion, but at the tremendous cost of thousands of lives.72 We could probably continue to forestall these revolutions for years, possibly decades longer, but in the long term of history, it seems to me that fewer countries will successfully avoid revolution. In that context, I would suggest that the options for a law­ abiding policy center around several basic goals. First, with respect to Nicaragua, I think we should resume economic aid, resume normal relations, resume humanitarian aid and end the economic embargo. The way to do this would be in the context of a settlement. My hunch is that the Sandinistas would willingly settle the World Court case if we were really willing to resume neutral aid to the people and government of Nicaragua and to suspend aid designed

68 See generally G. HUFFBAUER & J. SCHOTT, ECONOMIC SANCTIONS IN SUPPORT OF FOREIGN POLICY GOALS (1983) (analysis of the effectiveness of economic alternatives to armed inter­ vention); see also Damrosch, supra note 34, at 31. 69 See G. HUFFBAUER & J. SCHOTT, supra note 68. 70 See Damrosch, Politics, supra note 34, at 14 (noting U.S. support for anti-communist parties in elections in France and Italy in the late 1940s and its activities opposing the Allende party in elections in Chile in the 1960s and 1970s). Professor Damrosch states that countries such as the U.S. now openly support pro-democratic parties in elections in other countries, a practice now widely accepted in the international community as constructively promoting democracy. She further notes, however, that such intervention is still prone to abuse. See id. at 18-20. 71 See, e.g., U.N. CHARTER, art. 2, para. 4, supra note 23 (member states are not to intervene in the sovereign affairs of other states). 72 See generally AMERICAS WATCH, supra note 39 (EI Salvador); M. MCCLINTOCK, supra note 38 (Guatemala) (detailing the cost in lives and dollars of U.S. support for rightist regimes in EI Salvador and Guatemala against domestic insurgencies). 232 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215 to undermine the Sandinista government. Such an agreement could easily substitute for damages in that case. Second, the Arias Plan and the other various plans that have been developed all include some multilateral peacekeeping force and possible demilitarization of the region.73 At least with respect to the peacekeeping forces, the Sandinistas would accept such a plan and have openly expressed their willingness to do SO.74 I think that demilitarization of the region on a wide scale would also be accepted. Here again it would be our government that would likely reject both plans because of the risk that these plans would allow successful completion of Marxist revolutions in countries such as El Salvador and Guatemala. In the unlikely event that the United States would accept change in El Salvador and Guatemala, I think it could also normalize relations with Cuba. Another factor bearing on Central American policy is the ques­ tion of democracy. Here I would somewhat differ with Professor Farer. I do not think the United States should see its role as pres­ suring Nicaragua toward greater democratization. I doubt whether our government has ever really been concerned about democracy in countries such as Nicaragua, El Salvador or Guatemala. Nor do I believe that our pressure, given our historical role of intervening against the popular will in these countries, will be successful. We should instead recognize that in Marxist governments all over the world there are winds of change occurring.75 Nicaragua's current reforms are seen by many revolutionary movements not as an at­ tempt to create a liberal democracy but as an attempt to create space for an opposition. How long that space will continue and how large it will grow is something that is yet to be determined. Nonetheless, we must recognize that openness has not resulted simply from our pressure but is a symptom of underlying change occurring through­ out the socialist world. Finally, with respect to the World Court, we should try to settle this case before the Court issues a final damages verdict because I think that would only turn out badly. A settlement is possible. There

73 See Guatemala Peace Plan, supra note 26, at §§ 2 (cessation of hostilities) and 5 (cessation of support for insurgencies in neighboring countries). 74 See id. (Nicaragua joined other Central American countries in approving the Guatemala Peace Plan). 75 A key example of change in the Marxist world has been the Soviet Union, whose internal restructuring has allowed other socialist states to undertake democratic reform. See N.Y. Times, Oct. 3, 1988, at AI, col. 4 (discussing the extent of restructuring in the Soviet Union). 1990] U.S. POLICY IN CENTRAL AMERICA 233 are, however, two political concerns about the World Court that are more important than settlement of the Nicaragua case. First, how do we respond to the new winds coming from the Soviet Union favoring a multilateral approach to the World Court?76 Second, how should we resolve the problem of adjudicating uses of force? With respect to the second question, Professor Franck has written an excellent book on the historical role of the United States in the World Court77 which, unfortunately, comes to the conclusion that we cannot expect the Court to resolve questions of the use of force. 78 In terms of our own domestic course, we have seen over the last twenty years the use of the political question doctrine to avoid resolution of these questions in U.S. courts.79 Nevertheless, we of the International Law Society and the international community can­ not give up on this hope, which we have to understand is at the present time merely a hope, that issues of use of force can eventually be adjudicated and not left simply to unilateral political determi­ nation.

VII. LEGAL OPTIONS FOR KEEPING THE PEACE IN CENTRAL AMERICA

A. Collective Security Thomas Franck: As I had hoped, the panel has laid out a range of fascinating options for U.S. international policy. I am going to go back to the first proposed option and ask each of them to react to a scenario. Let me start with Anne-Marie Burley'S notion of a "streetwise" version of the Helsinki Accord. We have learned much since the Helsinki Accord was signed about the limits of U.S. power, even in this hemisphere. Just as we have learned the limits of our global power in Vietnam, we have learned through the Contra experience about the limits of our power in Central America. These limits constrain any policy designed to make this hemisphere com­ patible with the economic and socio-political agenda of the United

76 See supra notes 17-19 and accompanying text. 77 T. Franck, JUDGING THE WORLD COURT (1986). 78 See id. at 63-76. 79 See, e.g., Goldwater v. Carter, 444 V.S. 996,1002-06 (1979) (Rehnquist,J., concurring) (four judges would dismiss suit to bar abrogation of treaty of defense between the V.S. and Taiwan because the case involved a political question beyond the jurisdiction of the Court); see also Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982), aff'd 720 F.2d 1355 (D.C. Cir. 1983) (suit challenging V.S. aid to EI Salvador dismissed since issue raised in suit constituted a non-justiciable political question). 234 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215

States. Such an agenda presumably would have to be pursued through non-military means. Everybody on the panel has agreed on that. The Helsinki model as a non-military policy option, offers an interesting paradox.so On the one hand, non-intervention is so firmly established as a rule of international law that it is not worth pulping a single twig, to build on Professor Farer's simile, to suggest otherwise. On the other hand, we do not know what non-interven­ tion means. The Helsinki model is a form of intervention. Professor Lori Damrosch at Columbia has written an article for the American Journal of International LawS! which argues that a fair amount of political intervention has become normatively accepted in the inter­ national community.s2 I noticed that even Jules Lobel, in defining how the Sandinistas are likely to operate if they are left alone, said almost parenthetically that they will continue to support like­ minded ideologies. I think, therefore, the Helsinki model inter­ preted today, assumes that there is in the international system a considerable amount of tolerance for supporting tendencies in nearby countries or in countries in which one is interested. Assume, for the purpose of discussion, we are sitting in the State Department. We have determined we cannot use military force as a tool of our Western Hemisphere policy. On the other hand, there are certainly events in Central America which, if ignored, would make life uncomfortable for us in the United States and Canada. Our task is then to try to pursue a Helsinki-like approach, and at the same time get rid of this damages judgment that has been awarded against us by the World Court. Let us agree, with the Central American countries or perhaps with the Contadora nations as guarantors, to establish a Helsinki-like Central American Com­ mission. It would be funded by the billion dollar judgment which the Court has awarded against the United States and which, with the agreement of Nicaragua, will be passed to this commission. The job of the Central American Commission, unlike the Helsinki Com­ mission, will not simply entail meeting every two years to shoot the breeze and look at some reports. It would instead actively intervene in the region to insure achievement of economic, political and social

80 See generally Helsinki Final Act, supra note 29 (recognizing a norm of non-intervention in internal affairs of other states while providing for monitoring of human rights violations in other states). 81 Damrosch, Politics, supra note 34. 82 [d. at 5-6. 1990] u.s. POLICY IN CENTRAL AMERICA 235 goals. It would guarantee a free press, protect against military in­ tervention across boundaries and strive to insure that the govern­ ments of Central America explicitly advance stated economic de­ velopment goals which partake of the nature of economic human rights. Is this concept reasonable or unreasonable, lawful or unlaw­ ful, in the interest of the United States or not in the interest of the United States?

Anne-Marie Burley: I guess I like the Helsinki idea. I do have a slightly different notion of the Helsinki process. It is true that there is a good deal of informal intervention in the affairs of other coun­ tries, but I think the premise of the Helsinki process is acceptance of the fundamental legitimacy of all participants in the international arena.83 This really goes to some of the questions raised by Mark Janis and Jules Lobel about whether we are really prepared to accept the political orientation of other countries and then not to intervene. Second, I would ask what you mean by a commission intervening without force.

Thomas Franck: Money could be used to buy a printing press, for example, if the printing presses had been closed by the government. You should also refuse to provide any funding to governments that were in flagrant violation of economic development rights. Fur­ thermore, the billion dollars would just be the first installment.

Anne-Marie Burley: I am not sure if that is streetwise Helsinki or just idealized Helsinki, but that is fundamentally the approach I would espouse. I want to comment on the $1 billion because I think it is of interest to the audience. Nicaragua has in fact asked the Court for damages in the amount of $9 billion.84 To my knowledge, the largest amount the Court has given to date is about $100 million. 85 Even assuming that the judgment is not anywhere near $9 billion, but is closer to $1 billion, I have not seen any evidence of U.S. support for payment of even the lesser amount. In fact, if the Court

83 See Helsinki Final Act, supra note 29, at 1293-95 (recognizing the "sovereign equality ... inviolability of frontiers ... [and] territorial integrity" of the states of Europe). 84 In its pleadings filed with the I.C.J. before the June, 1986judgment, Nicaragua prayed immediate relief of $320 million, with leave to present evidence at a later date elaborating further damages. Nicar. v. U.S., 1986 I.C.J. at 20. 85 In fact, the only I.C.]. judgment awarding damages was in The Corfu Channel Case, where the Court awarded the United Kingdom £843,947 (about $2.1 million at the then prevailing exchange rate). 1949 I.C.]. at 250; see also C. GRAY, supra note 33, at 84. 236 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215 were to award any amount of judgment, Congress would probably amend the Tucker Act86 tomorrow to prevent Nicaragua from being able to sue in the Court of Claims and collect the judgment. That is my assessment of the political reality, which means that we really do have to pursue some kind of settlement. It may not be the best option for strengthening the Court, but it is certainly better than flouting its authority altogether. I would say, however, that I like your scenario of folding a settlement into a larger political, eco­ nomic and social process.

Thomas Farer: At the very beginning of the present conflict in Cen­ tral America, I took the position that it was implausible to imagine that the United States would adopt a strictly non-interventionist stance. Even if one thought such a stance was ideal, it remained unachievable. Consequently, persons like myself, who were opposed to the general direction of U.S. policy, had to make suggestions about other policies the United States could actively pursue. The United States is not a tired country. It is a country with sometimes vagrant and always powerful evangelical impulses. You take your country as you find it, and try to channel its energy and enthusiasm in a preferred direction. What Professor Franck proposes is an institutionalization of a proposal that I made in several different forums and in some of my writings in the early 1980s. My suggestion was to avoid isolating Nicaragua as we isolated Cuba. The one indisputable thing you can say about the effort to isolate Cuba is that it does not appear to have done much to advance any evident U.S. objectives.87 Rather than isolating Nicaragua, thereby encouraging or at least facilitating the practice of an anti-democratic vocation, we should smother it with largesse. We should fill the country with Venezuelan doctors, Spanish professors and teachers, and Canadian agricultural experts. We should also select people from the universities in Nicaragua and bring them here, rather than banning them because of their leftist associations.88 We should take advantage of Nicaragua's openness

86 Tucker Act, 24 Stat. 505 (1888) (codified at scattered sections of28 U.S.C.) (act limiting U.S. liability for foreign claims). 87 See G. HUFFBAUER & J. SCHOTT, supra note 68 (discussing the effectiveness of economic embargo of Cuba). 88 The Attorney General or the Immigration and Naturalization Service (INS) may deny visas to visiting aliens if either the Attorney General or INS "knows or has reason to believe [the alien] seek[s] to enter the United States solely, principally or incidentally to engage in activities which would be prejudicial to the public interest." 8 U .S.C. § 1182(27) (1982). In 1990] u.s. POLICY IN CENTRAL AMERICA 237 to outside contact, exploiting it in order to promote pluralism in all its manifestations: economic, political and social. What Professor Franck is suggesting, in effect, is a multilateral framework in which such a program might be done. I do not think that there can be a real easing of tension among Central American states without security guaranties. These include, regrettably, an acceptance of the legitimacy of all Central American regimes: the left-wing regimes, the crypto-fascist regimes and those that are somewhere in between. They also include a guarantee against external involvement in the region by extra-hemispheric powers. 89 One problem, of course, is that the societies of Central America are really quite different. In theory, each of the countries is com­ plying with the Arias Plan and engaging in negotiations with its opponents.90 In fact, that is not the case. In Guatemala, there is a ruling group which is committed to a society and government pro­ foundly antithetical to our values, a group that sustains itself with very limited assistance from the United States.91 What would they be prepared to agree to? Guatemala is probably a hopeless case, unless we are prepared to intervene far more deeply than anyone on the left, the center, or the right of the American political spec­ trum would find congenial. To a considerable extent, the same is true in EI Salvador. There again, there is a very small group of people in control of the society, people with harsh, right-wing, anti­ democratic views. 92 Nevertheless, it is conceivable that one could develop a nor­ mative framework for the region. After all, if we were able to fashion a relationship between Eastern Europe and Western Eu-

1983 the INS invoked § 1182(27) to deny an entry visa to the Nicaraguan Minister of the Interior, Tomas Borge. Visa Denials on Ideological Grounds: An Update (Report of the Committee on Immigration and Nationality Law of the Association of the Bar of the City of New York), reprinted in 8 SETON HALL LEGIS. J. 249, 254 (1985). 89 Exclusion of extra-hemispheric powers from the Americas has been a fixture of U.S. foreign policy since the promulgation of the Monroe Doctrine. See James Monroe, Annual Address to Congress, AM. STATE PAPERS, 5 FOREIGN REL. 250 (Dec. 2, 1823). While supporters of the Monroe Doctrine see it as means of protecting the common interests of the nations of the Western Hemisphere, detractors consider the doctrine a pretext for U.S. hegemony and interventionism. See generally Note, The Monroe Doctrine in the 1980s: 1nternational Law, Uni­ lateral Policy, or Atavistic Anachronism, 13 CASE W.J. INT'L L. 203 (1981). 90 See Guatemala Peace Plan, supra note 26, at § 10. 91 In 1980 the U.S. provided $2.25 million in military assistance to Guatemala. 2 M. MCCLINTOCK, supra note 38, at 108. 92 See generally AMERICAS WATCH, supra note 39 (describing human rights abuses in El Salvador). 238 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215 rope, then we could do the same for Central America and the United States. Everyone would agree to a set of values, and indeed, nominally everyone already has. They are all subject to the Amer­ ican Convention on Human Rights.93 So in a sense, the norms are in place. What you are proposing now is that we marshal some carrots, which are at the same time sticks, in order to encourage movement towards the realization of these norms, and doing it in a multi-lateral rather than purely unilateral fashion. Several important European and North American states are interested in Central America including Spain, the United King­ dom, France, Canada and the United States. There are also a certain number of countries in this hemisphere which are either democratic or which purport to be democratic such as Mexico, Brazil, Argen­ tina, Venezuela and Columbia. A concerted effort by these countries could promote democracy by employing a range of non-violent instruments more in the nature of carrots than sticks.

Jonathan Charney: Anne-Marie Burley mentioned my statement that the United States should pay the damages if awarded. My point is that the U.S. is obligated legally to pay if damages are awarded.94 The U.S. should, if at all possible, avoid being subjected to such judgment and should, in any event, seek a way to get a settlement that would avoid placing it in violation of any judgment. I would prefer, of course, that there be no payment and that there be no award. Realistically speaking, a damages award is a long shot. If you look at the record of the International Court of Justice, as Christine Grey did, in her book Judicial Remedies in International Law,95 it appears that Nicaragua is unlikely to get state damages awarded for anything other than actual damages.96 Therefore, I think that Nicaragua will be well advised to settle.

93 American Convention on Human Rights, Nov. 22, 1969 (unpublished); see Report of the U.S. Delegation to the Inter-American Specialized Conference on Human Rights, 9 INT'L LEGAL MATERIALS 711 (1970) (relating the contents of the Convention, which gave the Inter­ American Commission on Human Rights the power to investigate human rights abuses in the Americas). 94 There is disagreement among scholarly writers as to whether damages are a proper remedy for direct injury to a state by another state. While the I.C.]. awarded damages in The Corfu Channel Case, international arbitral tribunals have tended to award such damages only when the injury is to the nationals of the complaining state. See C. GRAY, supra note 33, at 85-92. 95 C. GRAY, supra note 33. 96 [d. at 85-92. 1990] u.s. POLICY IN CENTRAL AMERICA 239

On the Helsinki issue, I am confident that the U.S. liberal democratic tradition will continue to influence the conduct of its international relations. As Professor Franck mentioned, we see winds of change both in international relations and within socialist systems. I think that it is very possible that given the right environ­ ment, such changes may be nurtured even in Central America. Surely, the use of force is undesirable in its own right. It un­ dermines and corrupts the liberal democratic tradition. Systems like what Professor Franck has proposed may be very idealistic and may not be attainable in fact. I am more optimistic that we are going to reach a political-military stalemate in the region as a result of the exhaustion of the parties, if for no other reason. Perhaps this will be acceptable to the United States and the other players, although it is not ideal.

B. Measuring Damages in Nicaragua v. United States Thomas Franck: One question which I raised at the beginning which has not yet been addressed is the measure of damages claimed by Nicaragua. As Anne-Marie Burley has said, Nicaragua has asked for $9 billion. Such an extreme measure of damages will open up set-off claims by the U.S. that would be permitted by the Court should they fit within its decision on the merits. The Court's decision at least opens the door for the U.S. to argue that Nicaragua supplied the EI Salvador insurgents.97 Since the Court, in its judgment, en­ tertained that as a possible finding of fact,98 but did not make a clear determination on the issue, there remains the possibility of the set-off being effectively argued. Should the litigation continue to the damages phase, I also think the Court will have to appoint masters to determine the appropriate measure of damages.99 The masters will have to spend a substantial amount of time at the scene trying to get a sense of what the actual damages are. The necessity of appointing masters becomes clearer when considering the Nicar­ aguan claim, which includes everything that has happened to the

97 See Nicar v. U.S. (Merits), 1986 I.C.]. at 82 ("support for the armed opposition in El Salvador from Nicaraguan territory was a fact up to the early months of 1981"); see also id. at 87 ("certain transborder military incursions into Honduras and Costa Rica are imputable to the Government of Nicaragua"). 98 See supra note 25. 99 Masters have been appointed only once to consider the question of damages in a case before the I.C.]. See The Corfu Channel Case, 1949 I.C.]. at 249; see also C. GRAY, supra note 33, at 82. 240 BOSTON COLLEGE THIRD WORW LAW JOURNAL [Vol. 10:215

Nicaraguan economy over the last five years. IOO This raises the prospect of large damage settlements from the Court.

Jonathan Charney: That the case even came to the World Court, and the Court decided to hear the case are both troubling. I am in favor of some sort of negotiated settlement between the United States and Nicaragua. A settlement may be more palatable to the United States if the damages could be funnelled to an entity other than Nicaragua. I think, however, the American people traditionally have more trouble with international bureaucracy than they do with international law and international courts. IOI In international situ­ ations, many Americans want to keep the focus of decision-making in the United States. There is also an inherent American distrust of government, whether that government be in Albany or in Wash­ ington or in any foreign capital. So, I am suspicious of international commissions and how well they work within the American experi­ ence. They may work better in Europe, where international bu­ reaucracy is more of a settled expectation of the peoples. The differences between the cultures and the societies of the United States and Latin America also affect whether or not those commis­ sions could work as well here as they do in Europe.

Mark Janis: The first point concerning the Helsinki model is that there is some degree of Nicaraguan interest in that kind of model because it tries to develop Central American regional unity. To the extent the United States government is interested, the plan could be a practical one. The second point is that intervention is not a bad idea, because every country does it and it is certainly accepted to a certain extent. 102 The problem traditionally has been how we define intervention and what result we want to see from it. In the context of Nicaragua and other Latin American countries, we look at it primarily as a question of allowing a middle class pluralistic government to emerge. And in Nicaragua, I assume, this would ensure that there is an opposition press, opposition radio stations

100 See Nicar. v. u.s. (Merits), 1986 I.e.j. at 8-9. 101 Popular American frustration with the operation of international bureaucracy is evident in the public perception of the United Nations. See, e.g., Franck, U.S. Foreign Policy and the U.N., 14 DEN. j. INT'L L. & POL. 159, 168 (1986) (quoting Sen. Steven Symms (R­ Idaho), who stated that "taxpayers are sick and tired of playing host to our enemies and critics abroad." N.Y. Times, Sept. 23, 1983, at A7, col. 1). 102 See generally Damrosch, Politics, supra note 34 (discussing international acceptance of non-military modes of intervention). 1990] u.s. POLICY IN CENTRAL AMERICA 241 and possibly an opposition television station. In addition, we should encourage land reform, workers cooperatives and the kinds of eco­ nomic institutions which could revitalize some of these countries and change their economic base. These aspects, although worth­ while, have sometimes been ignored. With respect to the damage award, I think it very unlikely that any administration is going to litigate the measure of damages. If we did, my hunch would be that the Court would be loathe to reopen the issue of what happened in El Salvador, because it would raise the very problems which I feel the Court attempted to sidestep in its original opinion. For that reason, I think the only viable option is settlement.

VIII. COMMENTS AND QUESTIONS FROM MEMBERS OF THE AUDIENCE

A. The I.C]. Lacked Jurisdiction Over the Suit

Myres McDougal: 103 Mr. Chairman, this panel has been so grossly imbalanced, I hope that you will give me time enough to redress this imbalance. I might say that I was at one time counsel to our government on the jurisdictional phase of this Nicaraguan case. I do not purport to speak for the government; I am speaking only for myself and for the common interest. I feel that this panel was in fantasy land. I would like to take the outline posited by Anne-Marie Burley and reverse it by beginning with the Nicaraguan case, coming back to the security problem and then ultimately addressing the domestic issues. There were five grounds upon which the Court should have held it had no jurisdiction. 104 It created a jurisdiction that did not exist by the most fictitious means. One of the justices, for example, dreamed up the notion that by joining the United Nations, Nica­ ragua impliedly ratified a League of Nations convention which al-

103 Myres Smith McDougal is the Emeritus Sterling Professor of Law at Yale Law School; B.C.L., 1930 Oxford Univ.; ].S.D., 1931, Yale; LL.B., 1935, Mississippi; LL.D., 1966, North­ western; LL.D., 1970, York Univ. (Canada). Professor McDougal is a past president of the American Association of International Law and the American Association of Law Schools. Since admission to the bar in 1935, Professor McDougal has represented the United States in a number of international matters, the most recent being the jurisdictional phase of the Nicaragua case. 104 See generally 1984 I.C.]. Pleadings 1 (listing U.S. objections to I.C.]. jurisdiction). 242 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215 lowed it to sue before the World Court.105 Nicaragua, however, disappeared from the League of Nations two years before the doc­ ument was framed and never signed it.l06 Such a theory could not possibly have been anything other than a fictitious, question-begging way of creating a non-existent standing to sue. The Court had no jurisdiction, the United States never con­ sented to such jurisdiction, and Nicaragua had no standing to sue. When an international court, arbitral tribunal, or other interna­ tional body renders a decision that it has no competence to render, the parties have no moral or legal obligation to obey it.107 So when you talk about the United States making compensation or entering into negotiations with Nicaragua, you are just dreaming. The judg­ ment is a nullity. Let us now turn to the merits of the case. Since I have written a thousand-page book with Feliciano on aggression and self-de­ fense,108 I think I know the history of this area of international law. In contrast to that history, take the statement of the Court on the merits with respect to both aggression and self-defense. Rather than take into account Nicaragua's expansive totalitarianism, the opinion took a completely neutral view of the Sandinista regime.109 The Court wanted to have law that comprehended both expansive to­ talitarianism and non-totalitarianism. As a consequence, the opinion could not take into account a lot of the considerations that had moved the United States to intervene in Nicaragua. It did, however, proceed to honor the Russian notion of "wars of liberation," and to disparage older doctrines of self-defense in unprecedented fash­ ion. llo The Court's unjustified support for "wars of liberation," was

105 Nicar. v. u.s. (Merits), 1986 I.C.]. at 161-62 (opinion of Lachs, ].). Nicaragua failed to ratify the Protocol of Adherence to the Statute of the Permanent Court of International Justice in 1939, but Justice Lachs believed that Nicaragua had validly accepted thejurisdiction of the court by having sent a telegram informing the court of Nicaragua's intention to ratify the protocol. [d. 106 See Nicar. v. U.S. (jurisdiction), 1984 I.C.]. 392,400 (judgment Uurisdiction] of Nov. 26) (Nicaragua never signed the protocol of adherence to mandatory jurisdiction of the Permanent International Court of Justice, which signing would have made Nicaragua subject to the jurisdiction of the I.C.].). 107 Cf c. GRAY, supra note 33, at 59 (effectiveness of remedies awarded by the I.C.]. hinges on the existence of jurisdiction). 108 M. McDOUGAL & F. FELICIANO, LAW AND MINIMUM WORLD PUBLIC ORDER (1961) (proposing a legal and conceptual framework for adjudication of war and aggression in international law). 109 See, e.g., Nicar. v. U.S. (Merits), 1986 I.C.]. at 134-35 (the Court did not find, as the u.s. alleged, that Nicaragua violated its citizens' human rights and further stated that such violations, had they existed, would not constitute a valid pretext for the U.S. intervention). 110 [d. at 122-23 (in the absence of evidence of armed attack of EI Salvador by Nicaragua, 1990] u.s. POLICY IN CENTRAL AMERICA 243 pointed out in Judge Schwebel's very eloquent dissent.lll The ma­ jority first said that, despite the staging of hostilities against EI Salvador from Nicaragua and the existence of an organization in Nicaragua sending people, goods and direction into EI Salvador, Nicaragua's actions did not amount to armed attack.ll2 Having ad­ vocated a fictitious notion of what constitutes armed attack, the Court turned to the allegedly literal words of Article 51 113 and held that the United States was not authorized to assist in the defense of EI Salvador.114 This ruling clearly adopted the Russian notion that Article 24 115 does not apply to wars of liberation. 116 Turning to the question that Ms. Burley raised, you have two complementary sets of doctrines. On one side of the doctrinal struc­ ture you have this nonsense about sovereignty and non-interven­ tion. On the other side you have the notions of self-defense, regional self-defense, coming to the assistance of other people, and main­ tenance of public order. In any particular instance, the Court or decision-maker has to decide which side of this doctrine it is going to take. You cannot just piously say "I am against intervention, I believe in sovereignty." You are talking through your hat if you do, or at least you are talking in a fantasy world that has nothing to do

the Court found that the doctrine of collective self-defense did not justify U.S. aid to the Contras), but see id. at 348-49 (Schwebel, J., dissenting) (stating that the Court, by criticizing U.S. intervention while tacitly condoning Nicaragua's support for the Salvadoran rebels, impliedly ratified the Soviet notion of valid communist "wars of liberation"). 111 [d. at 348-49. 112 See id. at 122-23. 113 CHARTER OF THE U.N., art. 51 (1945) states: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. 114 Nicar. v. U.S. (Merits), 1986 I.C.]. at 122-23. 115 CHARTER OF THE U.N., art. 24, provides: 1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of inter­ national peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. 2. In discharging these duties the Security Council shall act in accordance with the purposes and principles of the United Nations .... 3. The Security Council shall submit annual, and when necessary, special reports to the General Assembly for its consideration. 116 See Nicar. v. U.S. (Merits), 1986 I.C.J. at 348-49 (Schwebel, J., dissenting). 244 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215 with the real world. Looking at the real world, notwithstanding Mr. Gorbachev's talk the other day, we have two contending systems of world order. On one side is expansive totalitarianism. On the other side is the United States and the free world, which regardless of its evils aspires toward freedom and human dignity for all peoples. I happen to think that our attitudes prompt us to a good deal more than aspiration. In the real world, international law has to be framed to take these contending systems into account. I am not criticizing the International Court of Justice because it made law. Many of you know I was born in the America of legal realists. ll7 I know that decision-makers have to make law. The question, however, is whether or not they make law in the common interest of humanity or against the common interest. It is awfully hard to find the com­ mon interest of expansive totalitarianism on one side and a public order aspiring towards human freedom and dignity on the other. It is extraordinarily difficult for the Court to make law in the common interest. Nevertheless, the internal domestic affairs and internal structures of the different parties to the suit are subject to the overriding rules and policies of international law. This word sovereignty is a meaningless noise. Any international law restricts the freedom of states to behave and do things that they want to do. Any doctrines of international law cut down the doctrines of non­ intervention and all their synonyms and the mushrooms that grow around them. In the light of this whole factual context, the question is whether the United States was justified in taking measures to assist EI Salvador in its effort to be free of expansive totalitarianism. The U.S. action could be supported by the doctrines of collective self-defense, liS the coming to the assistance of a state that is being attacked, IJ9 or even other doctrines if you wanted to invoke them. I submit to you that if you make a rational choice in terms of the common interest of peoples who aspire toward a free world, a world of human dignity, you can have only one answer here. The United States should take whatever measures are necessary to promote the security of Central America against expansive totalitarianism. 120 Again, Ms. Burley is quite generous when she refers to Nicaragua.

Il7 See, e.g., J. FRANK, LAW AND THE MODERN MIND (1930) (positing that law cannot be certain since courts must be able to change the law to accommodate the complexity of human relations). 118 See, e.g., CHARTER OF THE U.N. at art. 51, supra note 39; see also id., at art. I, para. 1. 119Id. at art. 51. 120 See, e.g., J. KIRKPATRICK, supra note 32, at 49-52 (drawing the distinction between totalitarian and authoritarian dictatorships). 1990] U.S. POLICY IN CENTRAL AMERICA 245

We all know as a matter of fact that the Sandinistas were trained in Cuba and Moscow, and, by a naked power play, dispossessed the people who had been trying to rule the country after running out the dictator. To call that regime "Nicaragua" is just another fiction. People who believe in freedom and human rights should not be misled by this. I see you are getting anxious, Mr. Chairman, but I hope you will understand and remember what I have said.

Thomas Franck: Thank you Professor McDougal. I think we ought to take a few more comments from the floor. I would like to urge the audience to tolerate the assumptions which I stated at the be­ ginning of the session. We are not a panel to reargue either the jurisdiction or the merits of the Nicaraguan case. We have instead assumed that when the United States ratified the Charter of the United Nations121 and the Statute of the International Court of Justice,122 it made a treaty commitment that it would abide by the jurisdictional choice. We are proceeding on the assumption that we ought to discuss what is required to put us back into compliance with the obligations which the Court has imposed upon us. We wanted deliberately to suspend a rehearing of all the arguments pertaining to the merits of the case, just as at one point in the history of the United States it was useful to talk about what could be done about integrating schools rather than to argue about whether the decision of the Supreme Court in Brown v. Board of Education 123 was unconstitutional.

B. Resettlement of the Contras Michael Glennon: 124 I could not help noting that the panel did not address the questions Professor Franck asked earlier concerning the possible resettlement of the Contras in a post-military period. I would like to make a modest suggestion as to what such a settlement might look like. It seems to me a terrible waste of resources to allow these representatives of a public order aspiring to human dignity

121 U.N. CHARTER, June 26,1945,59 Stat. 1031, T.S. No. 993. 122 STATUTE OF THE I. C.]. , June 26, 1945,59 Stat. 1031, T.S. No. 993. 123 347 U.S. 483 (1954). 124 Michael J. Glennon is a Professor of Law at the University of Cincinnati Law School; B.A., 1970, ColI. of St. Thomas; J.D., 1973, Minnesota. Professor Glennon was a member of the Committee on Jurisdiction of the I.C.]. and is on the Board of Editors of the American Journal of International Law. 246 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215

and freedom, the moral equals of our Founding Fathers,125 to dis­ sipate without exposing us to their ideals. It seems to me it would be fair to resettle them in the congressional districts represented by those who have consistently voted for Contra aid. They might be able to participate in good government organizations and lead Boy Scout Troops and civic organizations in readings on Locke, Rous­ seau and Montesquieu. We talked last night about our special issue of the American Journal of International Law commemorating the Bicentennial of the Constitution. Perhaps Professor McDougal could use his influence to persuade Colonel Bermudez to submit a piece on the Constitution and humanitarian law.

C. Mining Nicaraguan Harbors Was an International Tort

Anthony D'Amato: 126 Looking at the damages question, while all of you are bothered by a nine billion dollar settlement, I was taken aback when Professor Charney said he did not want to pay anything. It seems to me that the International Law Association ought to recognize that the mining of the harbors of Nicaragua was an international tort by the United States. It was a tort committed against a country with which we had a treaty of peace, amity and cooperation.127 We mined the harbors surreptitiously and caused Nicaragua damage. For us not to pay at least an amount equal to the damage caused by the mining would be a horrendous precedent. Irrespective of what you think about the Nicaragua case, or the International Court of Justice, I think that there is a minimum measure of damages below which we ought not countenance going.

D. Negotiation Strategies for Nicaragua

Richard Bilderl28: Like a number of the panelists, I have always been very intrigued by Jonathan Charney'S suggestion that settlement is

125 In a speech given on March I, 1985 before the Conservative Political Action Confer­ ence, President Reagan called the Contras the "moral equals of our Founding Fathers." N.Y. Times, Mar. 2, 1985, at AI, col. 1. 126 Anthony M. D'Amato is a Professor of Law at Northwestern Law School; A.B., 1958, Cornell; J.D., 1961, Harvard; Ph.D., 1968, Columbia. Professor D'Amato is a teacher of international law and a member of the Board of Editors of the American Journal ofInternational Law. 127 Treaty of Friendship, Commerce and Navigation, June 21, 1867, United States­ Nicaragua, 15 Stat. 549, T.S. No. 257. 128 Richard B. Bilder is the Burrus-Bascom Professor of Law at the University of Wis­ consin Law School; B.A., 1949, Williams Coli.; J.D., 1956, Harvard. Professor Bilder is a member of the U.S. Institute of Human Rights and is on the Board of Editors of the American Journal of International Law. 1990] u.s. POLICY IN CENTRAL AMERICA 247 the solution to the problem. Therefore I just want to raise a question which you might find of interest and perhaps some of the panelists might want to address. I also think that the best way out of this for Nicaragua, the United States and the whole international commu­ nity is an eventual settlement of this matter, using the hostages case 129 as a precedent. I am very disturbed by the fact that the case is moving on toward a decision on damages. Will moving on to the damage phase make an eventual settlement politically harder or easier for the parties? Let me put it another way. Assume you are advising Nicaragua. A happier result, perhaps under the future U.S. administration, might come after next year. Would you counsel Nicaragua to try to delay a push for a quick judgment, or would you counsel an aggressive stance to enhance its negotiating powers? I am not sure which way it cuts. If you were a member of the Court and wished to have some happy results for the Court, for the United States and for Nicaragua, would you perhaps try and find some way of delaying or putting off this issue until the possibilities of settlement might at least have been more fully explored under a new administration? Finally, is it possible to have a settlement, or is the machinery already grinding on so we do not have any more options?

Thomas Franck: Anne-Marie Burley, why don't you and Jonathan Charney have a go at that question. Then let us go back to the audience for some more questions. Incidentally, one part of the answer to your question is, of course, the Masters Appointment process130 which I referred to a few minutes ago. If Masters are appointed by the Court there is going to be several years of fact finding.

Anne-Marie Burley: I would like to start with that last point. Yesterday I spent some time talking to one of the lawyers for Nicaragua who told me that the Court is actually in no hurry at all to proceed to the damages phase. In fact, the Court is really opening the door as widely and discretely as it can to allow other proceedings to inter­ vene. I think it is important that the damage phase be postponed as long as possible. I do not think that the Court is going to take the initiative if the parties do not.

129 u.s. v. Iran, 1980 I.e.]. 3. 130 See supra note 99 and accompanying text. 248 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215

Just very briefly, and mindful of Professor Franck's injunction not to reopen some of the issues, I want to refurbish the Court's reputation. I think it is worth pointing out that Justice Schwebel voted against the United States on the mining question,l3l and that the votes on the big questions of U.S. responsibility for intervening in Nicaragua and direct action were twelve to three. 132 The only judge who voted with the United States all the way through was Judge Oda, the Japanesejudge.133 Otherwise, in the majority against the United States were the French judge, the Italian judge, the Swedish judge, which rebuts the image of a highly politicized Court.134 It is also worth pointing out that the Court did, to the extent it could, take account of evidence that the United States would have submitted had it participated,135 particularly, a State Department publication entitled Revolution Beyond Borders. 136 More­ over, the Court did conclude that the United States was not respon­ sible for the Contra atrocities. 137 One final point regarding Professor Glennon's suggestion about what to do with the Contras, an issue that we have not really addressed. I want to raise an interesting legal issue. The Court, as I said, held that the United States was not ultimately responsible for everything the Contras did because it did not have entire control over them. 138 That will be an issue in the damages phase. The question of how much control the U.S. exerted over the Contras and what the measure of damages should be is intimately linked. I would suggest that anything that we do now with respect to the Contras, for example accepting responsibility for relocating them, potentially weakens the U.S. position in the damages phase.

Jonathan Charney: Let me make two comments regarding Professor McDougal's statement and then go on to Professor Bilder's question.

131 In fact, Justice Schwebel determined that the mining was illegal to the extent it affected countries other than Nicaragua. Nicar. v. U.S. (Merits), 1986 I.C.]. at 379-80 (Schwebel, ]., dissenting). 132Id. at 148-49 (finding by a vote of twelve to three that 1) the U.S. breached its treaty of friendship with Nicaragua; 2) that the U.S. was obligated to refrain from further such acts; and 3) that the U.S. was liable to make reparations for its actions). m See id. at 146-49 (listing the the judges' votes on each issue). u4Id. 135 Id. at 43-45. 136 See Nicar. v. U.S. (Merits), 1986 I.C.]. at 44. I37 Id. at 64 (U.S. funding of the Contras held insufficient to attribute to the U.S. responsibility for the illegal acts of the Contras). 138 Id. at 64-65. 1990] U.S. POLICY IN CENTRAL AMERICA 249

On the question of jurisdiction, Professor McDougal did not men­ tion the com promissory clause issue. Only one judge dissented on the merits of the decision to find jurisdiction based upon the com­ promissory clause. 139 I think that fact has been ignored by many. With respect to the lack of balance on the merits, that is the fault of the U.S. It did not put forward its own arguments and evidence that might have promoted a more balanced judgment.14o On the question of damages, I do not think that satisfaction in international law requires a payment of money.141 There are other ways of sat­ isfying international legal wrongs. I agree that the Court ought to consider the use of masters and other fact finders, but for no other reason than to delay the final disposition and to give diplomacy more of a chance. I think it is very important that we seek a settle­ ment. The Court has telegraphed its interest in delaying the judg­ ment on the merits. The Court also recognized at the merits phase that its role is to encourage a settlement,142 and I think it will continue to do that. A damages award, however, would place an obstacle in the way of settlement on both sides. I remember about two years ago, there was a short article in The New York Times about an effort by Albania to reestablish diplomatic relations with the U.K.143 The first issue on the agenda was the unpaid damages award that arose out of the Corfu Channel case. 144 The damages issue will likewise hang over the United States for a long time. In fact, the damages award would increase the leverage of Nicaragua out of proportion to its political and military power. I think its hand would be strengthened in any settlement negotiation conducted after such an award were rendered.

E. The Willingness of the United States to Intervene in Other Nations Leonard Boudin: 145 In a sense, I agree with Professor McDougal that there is a lack of balance of the panel, but it is imbalanced the other

139 [d. at 149; see Charney, Compromissory Clauses, supra note 45. 140 See note 51, supra. 141 See supra note 94; see generally C. GRAY, supra note 33, at 82-92. 142 Nicar. v. U.S. (Merits), 1986 I.C.]. at 149 (stating the unanimous opinion of the Court that "both [p]arties [should] seek a solution to their disputes by peaceful means in accordance with international law."). 143 Binder, A Peek Behind the Albanian Curtain, N.V. Times, Oct. 5, 1985, p. 5, col. 1. 144 The Corfu Channel Case, 1949 ICJ at 244 (Merits) (assessment of compensation due from Albania to the United Kingdom). 145 Leonard Boudin (1912-1989) was an attorney noted for his practice in civil liberties law. Mr. Boudin represented such varied clients as Julian Bond, Paul Robeson, Benjamin 250 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215 way. I have never seen a group of scholars make so vigorous an effort to work out some way to save face for the United States. To propose both a Helsinki plan of some kind, which has been disre­ garded by the United States for decades, and an arbitral group to sit on the decision of the International Court ofJustice is antithetical to the rule of law. I do not like to engage in political debate, but I think there is a sense of unrealism in the panel. The panel disre­ gards the whole history of the United States in Latin America. The problem is with the United States. What concerns me particularly in view of both the imminent election of George Bush and the attitude of the American people, is that we are not changing our mood in terms of our sense of power in what is sometimes called the "American Lake." Finally, I would point out that the discussion here has been to a large degree about military action in Central America, which of course, has resulted in terrible injuries and deaths. But when I consider the U.S. economic embargo of Cuba, and think of the economic injury that we have caused Cuba since 1963, it clearly demonstrates how we are able to crush a particular country. In any discussions we have in the future, the interference with a country's fundamental right to survive caused by U.S. eco­ nomic sanctions ought to be considered.

F. Politicization of the I.C]. and Enforcibility of Awards at International Law

Edward Gordon: 146 I would like to begin with an illustrative example of why I think this panel spoke with something less than precision. You referred to the "Japanese judge" on the Court and the "Swedish judge" on the Court, thus emulating Davis Robinson, who e~ployed such terminology to illustrate the politicization of the Court.147 Those people, however, do not sit on the Court as representatives of their respective countries. The justices sit independently of na­ tional affiliation. 148 Robinson's view simply fosters the damaging

Spock, Daniel Ellsberg, and the governments of Cuba and Nicaragua. Mr. Boudin died November 26, 1989. 146 Edward M. Gordon is a Professor of Law at Albany Law School; B.S., 1960, Penn­ sylvania; LL.B., 1963, Yale; Diploma in International Law, 1965, Cambridge Univ. Professor Gordon is an instructor in Constitutional Law and Foreign Relations and is on the Advisory Committee of The International Lawyer. 147 See generally Robinson, Should the United States Reconsider Its Acceptance of World Court Jurisdiction?, AM. SOC'y INT'L L. PROC., April, 1985, at 95. 148 STATUTE OF THE I.C.]., art. 16 provides that "no member of the Court may exercise any political ... function ...." Article 20 further states that "each member of the Court shall ... exercise his [sic) powers impartially and conscientiously." See also note 63, supra. 1990] U.S. POLICY IN CENTRAL AMERICA 251 illusion that particular decisions of the Court are simply replications of what the General Assembly would do in a particular context. On the other assumptions of the panel, I think there is also something less then precision. For example, it takes a great leap of logic to proceed from the proposition that you must comply with an award of the Court to' the conclusion that it must be done promptly. If you are all saying that prompt, adequate and effective compliance is the world community standard for complying with an international obligation, then it might be worthwhile for the United States to pay the award promptly and adequately to establish that principle. Our Supreme Court, however, is on record as saying that, at least in the context of the expropriation of alien owned property, it could not find to its satisfaction the existence of such a consensus in the world community on the basis of prior practice. That finding has a larger implication in the context of a settlement. All of you who talked about paying the award as part of a larger settlement were talking in an immediate context; but why? Why not a long term settlement? And why not one involving the Soviet Union and all the principal actors in the drama in Central America? As to the notion that international awards must be paid promptly, as opposed to other kinds of international claims, I think you would find it hard in actual state practice to find a consensus on that point. How quickly did the Soviet Union comply with the 1962 advisory opinion on certain expenses?149 Under the best of constructions it took 26 years, and that is not an aberration. 150 The claims desks of foreign offices throughout the world are filled with unpaid claims a generation or two later. So far as I am aware, there is no practice to back up the assumption that awards against gov­ ernments under international law must be complied with promptly. That being so, I see a great many contexts over the next twenty years in which the United States could pay this award, not lose face and, if inflation goes the way it may go over the next twenty years, pay an award which is not terribly expensive in real dollar terms.

G. Set-Offs Against the I.C.]. Judgment L.F. Goldie: 151 I would like a small point clarified. Professor Franck mentioned the possibility of set-offs against a judgment predicated

149 See Certain Expenses of the United Nations, 1962 I.e.]. 150 (Advisory Opinion of July 20) (holding that U.N. members were not entitled to withhold funding for U.N. activities which they oppose). 150 Only in 1988 did the Soviet Union express its willingness to fund U.N. activities with which it does not agree. See A Real World Court, supra note 16. 151 L.F. Goldie is a Professor of Law and Director of the International Legal Studies 252 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215

upon infiltration from Nicaragua to EI Salvador. If we are talking about United States liability, how can that be set-off when the Court stated that there is no legal predicate for our actions under Article 51 ?152 It seems to me that there is no legal basis for the United States to claim any set-off. Would a set-off be a third party claim through EI Salvador, provided it was recognized by the Court and not glossed over, as I believe it was, in the judgment?

Thomas Franck: I was only trying to elicit some comments on whether it is permissible to argue in the Court that Nicaragua provided supplies, training and other facilities for the EI Salvador insurgency. Nicaragua claims that everything that has gone wrong with its econ­ omy is because of the Contras. 153 We could claim that a large part of our expenses in keeping the EI Salvador economy afloat were due to the fact that we had to fight an insurgency and help the EI Salvador government which requested this aid.

IX. CONCLUDING REMARKS Thomas Franck: I think we might now ask each of the members of the panel to give us some concluding wisdom.

A. Changing the U.S. Conception of Its Hemispheric Role Jules Lobel: I would like to follow-up on what was suggested earlier. To discuss enforcement of international law and enforcement of this particular judgment is in the present political context an unreal exercise unless we consider whether the United States is willing to give up a conception of its role in the Western Hemisphere which it has held for quite a long time. The most prominent aspect of that conception is its refusal to recognize or to accept the legitimacy of Marxist regimes in the Western hemisphere irrespective of whether they are democratic or undemocratic, whether or not they come to power through elections or whether or not they try to influence their neighbors. 154 I do not believe that there is a serious challenge to this conception among the major political forces in the United

Program at the Syracuse University Law School; B.A., 1941, U.W. Australia; LL.B., 1945; LL.M., 1956, U. of Sydney. Professor Goldie is Chairman of the International Law Association Committee on Exclusive Economic Zones and is on the Directorate of the Organization for Economic Cooperation and Development. 152 Nicar. v. U.S. (Merits), 19S6 I.C.]. at IIS-23. 153 See, e.g., id. at IS-20. 154 See note 64, supra. 1990] U.S. POLICY IN CENTRAL AMERICA 253

States political arena. It means that the discussion of international law will take place somewhat in an air of unreality. Now, what does that mean for our discussion of international law? It means that to a certain extent international law must be directed at raising that question and continually emphasizing that this is an option which we have. We either have the option of a law­ abiding foreign policy or a continuation of a conception of this hemisphere which basically conflicts with certain of the main prem­ ises of international law. Once we start from that assumption, we could then ask what a law-abiding policy would mean. In that con­ text, if we were willing to recognize the legitimacy of the Nicaraguan government, it would be possible to settle this damage award, be­ cause the Nicaraguans are somewhat desperate for U.S. aid not tied to undermining their government. If we say we will give them aid but channel it only to the middle class opposition parties, I do not think Nicaraguans are going to accept that in lieu of damages. I think, however, to the extent that we really provided some serious aid they probably would settle the damages aspect. The problem is that we are unwilling to do so because of the political conceptions we have both of Nicaragua and the Western Hemisphere.

B. Framing a Positive Response to the I.e]. Judgment Mark Janis: I would like to go to the question of balance. I think it is a rare distinction for a panel to be accused of being unbalanced both by Myres McDougal and by Leonard Boudin. It must be the very opposite of damning with praise. I think we are unbalanced, but I would say that is true of everyone here. There is probably a greater commitment to international law and a greater belief in international law in this group then there would be anywhere else. I would like to return to my ideas about symbolism. Beyond all of the particularities of the I.C.]. decision or the Central American problems and the American policy towards that region, I think the Nicaraguan case has important symbolism, both for the United States and for other countries, with respect to international law. If you look towards the Jay Treaty arbitrations of 1794155 and the

155 Treaty of Peace, Amity, Commerce, Navigation, Boundary, Claims and Extradition (the Jay Treaty), United States-United Kingdom, Nov. 19, 1794,8 Stat. 116, T.S. No. 105, provided for panels of U.S. and British citizens to arbitrate disputes arising from issues not resolved in the treaty negotiations. These arbitrations were the prototype for modern inter­ national arbitration. See THE HAGUE, THE INTERNATIONAL COURT OF JUSTICE 11 (1976); C. GRAY, supra note 33, at 5. 254 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 10:215

Alabama arbitrations in 1873,156 both of those arbitrations had sig­ nificant effect upon public attitudes towards what international law could accomplish. They were both positive statements. I reckon that with the Nicaragua case we are running the risk of a very negative statement about international law. It is in our vested interest to see if we can dispel the negative. In a way, Professor McDougal was one of the commentators who spoke most directly to symbolism. His answer is one of someone committed to international law, by saying in short, "I am for international law but what the I.C.]. has done is not international law," and that is a good and valid sort of response. I think what we need to do is not trivialize or make too legal or specific the kind of response we suggest as a group to the Nicaragua case. The analogies that have been made to other cases would be valid for many sorts of discussions, but I think with the Nicaragua case we are involved with a matter of high politics. In matters of high politics you deal in simplicities and symbolism. It is important for the new administration to deal with the Nicaragua case in some sort of important and symbolic fashion. There are positive and negative aspects of the case. Certainly the discussion here among people committed to international law indicates that many people feel very fervently and very differently. Whatever the response, I think it should be a positive response, one that looks at international law and international courts and tries to make some sort of positive statement. I gave you my own notion about what one possible response should be. I do not think that is the only response, but I certainly hope that we as international lawyers will help structure that response in such a way as to be a step forward for international law and international courts.

C. Using the Tools of International Law jonathan Charney: I do not know what I can add to this, so let me try to be brief. We have a political dispute with Nicaragua. Nicara­ gua successfully used the tools of international law against the U.S., including litigation in the I.C.]. At this stage I think, at a minimum, the United States should improve its strategic use of those tools both to advance its interests in this specific dispute as well as to

156 Treaty of Washington, United States-United Kingdom, May 8, 1871, 18 Stat.(2) 513, T.S. No. 133, provided for arbitration of disputes arising from alleged British breaches of neutrality during the American Civil War. The effectiveness of these arbitrations led to the inclusion of provisions for international arbitration in subsequent treaties. See THE INTER­ NATIONAL COURT OF JUSTICE, supra note 155, at 12. 1990] u.s. POLICY IN CENTRAL AMERICA 255

strengthen the U.S. role in the promotion of international law and peaceful international relations. The U.S. needs to reestablish a better relationship with the Court. That could influence the out­ come in the particular case as well as outcomes in future cases. The U.S. also needs to resolve the dispute with Nicaragua because the U.S. has an interest in a stable Central America. That, of course, does not necessarily mean that all states in Central America need to be allies.

D. Restructuring the Framework of International Law Thomas Farer: I think Jules Lobel is right to the extent he suggests that the United States sees the Caribbean basin, if not all of Latin America, as a legitimate sphere of influence. Likewise, the Soviet Union sees Eastern Europe as its sphere of influence, India sees the Asian subcontinent as its sphere of influence, Indonesia sees the Archepelago as its sphere of influence, and so on. i57 The United States is far from unique. There is evident a tension between the kind of prerogatives asserted by states able to project power beyond their frontiers and the United Nations Charter framework. i58 A good deal has been written about this in the last ten or fifteen years and it will go on being written. i59 This scholarship should not make us weep for the trees, for it is a tension that we are going to have to find ways to live with. The Yale school has tended to dissolve that tension through an excessively fluid view of the governing norms. Both jurisprudentially and in terms of the ultimate interests of this coun­ try, I think that is undesirable. Rather we should concede that there was a normative framework embodied in the U.N. Charter, which the United States saw as being useful for its national interest as the preeminent satisfied state. We were the principal architects of that framework, but in practice it has, from time to time, been somewhat inconvenient. We have thus acted like other states in sometimes breaking the constraints that we helped to establish. The question is not only where do we go from here, but where is the system going? Is the Charter framework collapsing before our eyes? Are we entering a period of international anarchy un­ precedented since the end of the Second World War? I think the

157 See generally P. KEAL, UNSPOKEN RULES AND SUPERPOWER DOMINANCE (1983) (discussion of the persistence of spheres of influence in the modern world). 158 See U.N. CHARTER, art. 2, para. 4, supra note 23. 159 See works collected at note 34, supra. 256 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. lO:215 answer to that is no, or at least it is far from clear that we are moving in that direction. This is, however, a time when some new architectural work needs to be done. I do not believe there is any country other than the United States that can perform that archi­ tectural work, even though our economic and military power is much reduced. Perhaps the Nicaragua case and the Central American crisis, if they do nothing else, ought to force us to think about what changes in the architecture of the international order are necessary at the present time. If we fail to confront this fact, communication among states about security issues will become more difficult, behavior will become more unpredictable, all at a time when the danger to hu­ manity arising from the spread of high-technology armaments is accelerating. Today, as in the past, the U.S. has a powerful interest in maintaining a large measure of restraint on the use of force in world politics.

E. The u.s. Should Act Multilaterally Anne-Marie Burley: I think that our future policy towards Nicaragua is going to be a bellwether. It is a bellwether of whether or not we can act multilaterally, whether we can listen to the countries that are most directly affected by our actions and try to forge a policy that addresses their real concerns rather than our perceptions of what their concerns should be. Unfortunately, we are going to have a President who announced very proudly this summer that he was a unilateralist, and that any country that would give up one iota of its sovereignty was crazy.160 Times are changing. We are still the single most powerful country in the world, and the latest projections I have read indicate we are going to remain so. Even in the year 2010 our GNP will still be far ahead of our closest rivals. Neverthe­ less, we are no longer powerful enough to single-mindedly pursue and get what we think we want. To that extent, I think that carving out a legal policy in Nicaragua would be a very positive sign.

F. Conclusions of the Panel Thomas Franck: I have listened very carefully to what I think were absolutely splendid presentations by all members of the panel. I feel a good deal of pride at having selected this panel and persuaded

[60 See N.Y. Times, Nov. 2, 1988, at AI, col. 3 (discussing George Bush's rejection of multilateral peace initiatives). 1990] u.s. POllCY IN CENTRAL AMERICA 257 them to come and talk to us about a topic that was not easy to address, that might have been unthinkable even a few months ago. In listening to them I thought I heard a certain degree of common ground. I thought that the notion that the United States would simply stop trying to influence the hemisphere was seen by the panel as unrealistic and probably even as undesirable. It was gen­ erally taken for granted that the United States in fact would tolerate a Marxist regime in the hemisphere, and that in any event that was no longer unthinkable. The notion that the United States would cease to support the liberalization of totalitarian regimes of the right or the left seemed to most of us unrealistic. That also had to be set­ off against the notion that we would tolerate a Marxist regime. It would depend upon what kind of Marxist regime it was. The notion that international law prohibits the United States from intervening against totalitarian regimes of right or left is generally perceived to be wrong. I cited Lori Damrosch's forthcoming piece161 just before she arrived, and would have called on her to speak if there had not been so many on the list already. International law, as Professor Damrosch indicates in her forthcoming article, limits the tools which may be used. It prefers carrots to sticks, it prohibits specifically military sticks, and it prefers multilateral carrots to unilateral car­ rots. 162 The possibility for linking the settlement to regional ma­ chinery with some effective carrots is no longer entirely unthinka­ ble. Ijust came back from a meeting in the Soviet Union. Whenever the human rights question came up, the conference broke into an angry discourse between the Hungarians and the Romanians. The number one human rights issue was what the Hungarians perceived the Romanians to be doing to Romanians of Hungarian origin in Transylvania. One of the Russian international lawyers at the meet­ ing came over and sort of said in despair, "We really need something like the Strasbourg machinery here in Eastern Europe to resolve these sort of questions." There are breaks in the horizon and there are possibilities to glimpse little bits of sunshine here, rays of hope. I am delighted that this panel was able to seize that moment. Per­ haps they, with you in the audience who have asked excellent ques­ tions, demonstrate that there is new thinking here as well.

161 Damrosch, Politics, supra note 34. 162 [d. at 5-6.